Sunday, 3 March 2013

HARRIS’ RM 200M FORMULA A NON-STARTER

By : JOE FERNANDEZ

Now we have heard it all
from former Sabah Chief Minister Harris Salleh. He wants the Federal Government to pay RM 200
million of our hard-earned money in 'compensation' to some riff-raff, for want
of a better term, in the Philippines who claim to be 'heirs' of the defunct
Sulu Sultanate. At last count, there were some 60 claimants to the Sulu
Sultanship.

The 'heirs' involved in the
on-going standoff in Lahad Datu claim that the defunct sultanate owns the
entire Sabah and has private property rights to it. The Brunei and Sulu
sultans, terrified of the fierce headhunters, incidentally never ventured
inland beyond the coastal stretches in Borneo. Under Adat, the entire land area
of Sabah is NCR (Native Customary Rights) and belongs to the Orang Asal i.e.
the Dusunic and Murutic Groupings.

We know from history that
the Sulu sultan at one time used to extort tolls from terrified traffic along
the waterways in eastern Sabah. Later, the extortionist activities were
extended to the waterways in northern by courtesy of the Brunei sultan, the
previous extortionist, who gave up this 'right' to the former.

Brunei, Sulu claims not by
war, conquest

These virtually criminal
activities, by no means, confer territorial rights or any transfer of
sovereignty which at all times resides with the people.

Neither the Brunei nor Sulu
sultans can claim like William the Conqueror of Normandy, France that they
acquired the ownership of the entire area by the act of war and conquest to set
up a feudal kingdom. William defeated English King Harold II at the Battle of
Hastings in 1066 and declared that he now owned the entire land area of
England.

The sovereignty itself, the
last time we heard anything about it ages ago, was “transferred”– if there’s
any such thing -- to the Philippines Government by one of the many pretenders
to the Sulu Sultanship. Manila then had the claim to much of eastern Sabah
inserted in the Philippines Constitution and maps and flogged the issue at the
time of Malaysia in 1963.

Harris’ suggestion obviously
takes its cue from the fact that every year; the Malaysian Embassy in the Philippines
issues a check in the amount of 5,300 ringgit (US$1710 or about 77,000
Philippine pesos) to the legal counsel of the heirs of the Sultan of Sulu.
Malaysia considers the amount an annual “cession” payment for the disputed
state, while the sultan’s descendants consider it “rent.

By the Mackasie Declaration
of Dec 13, 1939 by the High Court of Borneo in Sandakan in Civil Suit No.
169/39, C. F. Mackasie, the then Chief Justice of Borneo, ruled that nine
Plaintiffs were heirs of the defunct Sultanate of Sulu and were entitled to the
yearly RM5, 300 cession monies from the Malaysian Government.

Alfred Dent, the founder of
the Borneo North Borneo Chartered Company, and the Sulu Sultan came to an
agreement on 22 Jan 1878 and wherein the former agreed to pay the latter 5,000
Malayan dollars in annual pension money in return for “transferring the sultan
transferring his rights in North Borneo” – meaning in eastern Sabah –to Dent
and/or his Company.

On 22 April 1903 His Majesty
Sultan Jamalul Kiram signed a document known as "Confirmation of cession
of certain islands", under what he either "grant and ceded" or
"leased" additional islands in the neighbourhood of the mainland of
North Borneo from Banggi Island to Sibuku Bay to British North Borneo Company.
The sum 5,000 dollars a year payable every year increased to 5,300 dollars a
year payable every year.

British version of the 1878
Agreement

“hereby grant and cede of
our own free and sovereign will to Gustavus Baron de Overbeck of Hong Kong and
Alfred Dent Esquire of London...and assigns forever and in perpetuity all the
rights and powers belonging to us over all the territories and lands being
tributary to us on the mainland of the island of Borneo commencing from the
Pandassan River on the north-west coast and extending along the whole east
coast as far as the Sibuco River in the south and comprising amongst other the
States of Paitan, Sugut, Bangaya, Labuk, Sandakan, Kina Batangan, Mumiang, and
all the other territories and states to the southward thereof bordering on
Darvel Bay and as far as the Sibuco river with all the islands within three
marine leagues of the coast.”

Sulu version of the 1878
Agreement

“do hereby lease of our own
freewill and satisfaction to...all the territories and lands being tributary to
[us] together with their heirs, associates, successors and assigns forever and
until the end of time, all rights and powers which we possess over all
territories and lads tributary to us on the mainland of the Island of Borneo,
commencing from the Pandassan River on the west coast to Maludu Bay, and
extending along the whole east coast as far as Sibuco River on the south,...,
and all the other territories and states to the southward thereof bordering on
Darvel Bay and as far as the Sibuco River, ..., [9 nautical miles] of the
coast.”

We don’t know under what law
the Dent-Sulu Agreements was made and whether it was registered in any Court.
Philippine President Benigno Aquino has in recent days publicly indicated that
his office will study the “legal basis” of the claims by the Sulu “heirs”. If
so, why did previous Philippine Governments raise the Sabah claim?

Easier for Company not to
deal with Orang Asal

The Company subsequently
“acquired further sovereign and territorial rights” from the Sultan of Brunei,
expanding the territory under control to the Putatan river (May 1884), the
Padas district (November 1884), the Kawang river (February 1885), the Mantanani
Islands (April 1885), and additional minor Padas territories (March 1898).

It was easier for the
Company to deal with the Sulu and Brunei sultans than with the Orang Asal of
Sabah.

Meanwhile, in 1885, the
United Kingdom, Spain, and Germany signed the Madrid Protocol of 1885, which
recognized the sovereignty of Spain in the Sulu Archipelago in return for the
relinquishment of all Spanish claims over North Borneo.

In 1888 North Borneo became
a protectorate of the United Kingdom and remained so until 1 Jan 1942 when
Japan, by the act of war and conquest, demolished the British presence in Sabah
and the so-called Sabah claim, if any.

It was not until 1945, when
Japan surrendered, that the Company returned to Sabah.

In 1946, the Company sold
Sabah to the Colonial Office in London for Sterling 1.2 million.

The Mackasie Declaration is
the only claim the “heirs” of the Sulu Sultan, recognized by the High Court of
Borneo, have on the Malaysian Treasury.

There’s no reason why
Malaysia should unilaterally alter the sum mentioned in the Mackasie
Declaration just because Harris Salleh woke up one morning on the wrong side of
the bed and came up with “a better idea”.

Joe Fernandez is a mature
student of law and an educationist, among others, who loves to write especially
Submissions for Clients wishing to Act in Person.

He feels compelled, as a
semi-retired journalist, to put pen to paper -- or rather the fingers to the
computer keyboard -- whenever something doesn't quite jell with his
weltanschauung (worldview).

He shuttles between points
in the Golden Heart of Borneo formed by the Sabah west coast, Labuan, Brunei,
northern Sarawak and the watershed region in Borneo where three nations
meet.